Statesman Op/Ed: Professor John A. Robertson Asks: “Is Open Carry A Constitutional Right?”

On the same day the Texas Legislature took up consideration of a pair of bills on Open Carry and Campus Carry, Texas Law Professor John A. Robertson penned a much-shared and much-discussed opinion piece in the Austin American-Statesman. It appeared online at Statesman.com on Feb. 11, and in print on Feb. 12. We reprint it with their permission here.

“Open Carry Is Not A Priority For Texas,” by John A. Robertson

JA Robertson_optThe “open carry” movement in Texas asserts that open carry is a constitutional right, which the Legislature, by making illegal, has taken away. By not enacting open carry, they claim that the Legislature is violating its duty to protect the U.S. Constitution. A few passionate enthusiasts even argue that the refusal to enact open carry is treason that should be punished by stronger measures than simply voting recalcitrant legislators out of office.

The treason claim has no place in this debate. Article III of the Constitution defines treason as “levying war against the United States or giving aid and comfort to its enemies.” Legislators refusing to vote in a particular way are hardly treasonous.

Their claim about their constitutional right to open carry is also puzzling. If open carry is a protected Second Amendment right, there is no need for the Legislature to enact it. A typical way to enforce constitutional rights is to turn to the courts, as civil libertarians have done for decades. If they are correct, the state would be acting unconstitutionally if it prosecuted someone for open carry. They could bring a federal civil rights action for declaratory judgment and injunction against enforcement, as abortion activists do, or engage in open carry activities and defend against prosecution by asserting their alleged constitutional rights, as the civil rights movement did in the 1960s.

With such vocal and apparently wide support for open carry, one wonders why they have not sought judicial review for what they claim is a gross and obvious violation of their Second Amendment rights? Surely gun rights groups are available to fund or provide lawyers for their side.

Could it be that there is no constitutional right to open carry? This would not bar the Legislature from allowing open carry, but it would not be constitutionally required to do so or a violation of rights to prohibit it now.

At the very least, there exists great uncertainty of whether open carry is constitutionally protected. While legislators, public officials and citizens may assert their view of what is constitutionally protected, in the end the U.S. Supreme Court (or lower courts interpreting its pronouncements) will have to decide.

The uncertainty of the open carry right is compounded by the malleability of the Second Amendment. Written and interpreted until 2008 as connected to service in state militias, the Supreme Court found in Heller v. District of Columbia that it also protected an individual right of self-defense in the home, invalidating a law that created “the absolute prohibition of handguns held and used for self-defense in the home.”

The court, however, explicitly recognized that the Second Amendment right of self-defense was not unlimited, just as free speech and other fundamental constitutional rights are not. As Justice Antonin Scalia said, the “right was not a right to keep and carry any weapon whatsoever in any manner and for whatever purpose.” While noting traditional limitations such as on those who are mentally ill, convicted felons and the like, the court did not say that having and bearing arms was a fundamental right nor prescribe how great a need the state would have to show to restrict guns both in the home and in other settings.

Lower courts wrestling with how to weigh and balance the competing concerns have developed an intermediate level of scrutiny for gun regulations — not the strict scrutiny of clearly fundamental rights or the very loose rational basis test that upholds almost any state law. Instead, the courts require plaintiffs attacking a gun law to show that it significantly burdens the right of self-defense and that regulation of that right is not substantially related to serving an important state interest.

The odds are slim against courts recognizing open carry under Heller and its progeny. It is hardly a slam dunk for the open carry side and appears much weaker than they, in their fervor, claim. It will be hard for proponents to show that open carry is necessary for self-defense if concealed handguns are already permitted. Nor is the peace and well-being of people who come in contact with fellow citizens with handguns on their hips in restaurants, shopping malls, hotels, movie theaters, grocery stores, dry cleaners and all the other places of public interaction an unimportant concern, which the ban on open carry directly serves.

Open carry enthusiasts may be more invested in a symbolic recognition of their devotion to the Second Amendment than the reality of what the Second Amendment actually protects. I wish they would bring a lawsuit or risk prosecution so that their theory could be tested. Until then, let us agree that it is not an established constitutional right that they are claiming.